The Common Law of Nigeria has affirmed that Nigeria was created from pre-existing independent Sovereign States. Justice Ogundare in AG of the Federation v AG of Abia State & others SC28/2001:

‘Until  the advent of the British colonial rule in what is now known as the Federal Republic of Nigeria (Nigeria, for short), there existed at various times various sovereign states known as emirates, kingdoms and empires made up of ethnic groups in Nigeria. Each was independent of the other with its mode of government indigenous to it…This position existed throughout the land now known as Nigeria…It was the British colonial rule that provided the central authority that bound together all the erstwhile separate states, emirates, empires and kingdoms that were dotted all over the land now known as Nigeria.’

 

Britain created Nigeria from these ‘sovereign states…erstwhile separate states…dotted all over the land now known as Nigeria‘ by the means of ‘Orders in Council’ (Orders, for short) derived from the ‘prerogative’. In Britain, the ‘prerogative’ was a label for a set of executive powers located within and exercised by, or on behalf of, the Monarch. Britain shamelessly exploited the vagueness of the prerogative powers in its dealings with the Yorubaland.

 

As WW Lucas noted in Immunity of the Crown from Mandamus (1909) 25 LQ E Rev 290 @290:

‘…no branch of the law is so vague as that which relates to the legal status of the executive of the Crown and the relation it bears to the Judiciary.’

 

UK Ministry of Justice in The Governance of Britain. Review of the Executive Royal Prerogative Powers: Final Report:

‘The scope of the Royal prerogative power is notoriously difficult to determine. It is clear that the existence and extent of the power is a matter of common law, making the courts the final arbiter of whether or not a particular type of prerogative power exists. The difficulty is that there are many prerogative powers for which there is no recent judicial authority and sometimes no judicial authority at all.’

 

Britain’s use of the Orders formula to create Nigeria meant that the Orders became part of the Common Law of Nigeria. Hon. Justice Ogundare in AG of the Federation v AG of Abia State & others SC28/2001:

‘It is interesting to know the boundaries of the country the British created in 1914. By The Nigeria Protectorate Order in Council 1913 made at the Court at Windsor Castle on 22nd November 1913 but to take effect on 1st January 1914, the boundaries of the new country were defined. The boundaries of the Protectorate of Nigeria were again reaffirmed in The Nigeria Protectorate Order in Council 1922made on 21st November 1922 at the Court at Buckingham Palace. See Laws of Nigeria 1923. Volume 4 at page 355 et seq. In section II of the said Order in Council, the protectorate of Nigeria was defined as “the territories of Africa which are bounded on the South by the Atlantic Ocean, on the west, north and north-east by the line of the frontier between the British and French territories and on the east by the territories known as the Cameroons”’.

 

The inclusion of the Orders in the Nigerian Common Law implied justiciability in Nigerian courts. Orders have to be compatible with Nigeria’s common law principles, otherwise they are unlawful.­­­­ The lawful Order had three distinctive characteristics:

a.     an existence and extent,

b.     parliamentary approval, and,

c.     reasonableness.

 

The requirement for parliamentary scrutiny and approval dated back to the 1600s. CJ Coke in Case of Proclamations (1611) 12 Co. Rep. 74 @76:

 ‘…the King hath no prerogative, but that which the law of the land allows him’.

 

The Bill of Rights 1688:

‘Suspending power — that the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall.’

 

Section 11 of the Foreign Jurisdiction Act 1890:

‘Every Order in Council made in pursuance of this Act shall be laid before both Houses of Parliament forthwith after it is made, if Parliament be then in session, and if not, forthwith after commencement of the then next session of Parliament, and shall have effect as if it were enacted in this Act.’

 

The Orders that Britain used to create Nigeria did not have ‘parliamentary scrutiny and approval’. No evidence exists that the Orders were ever placed before the British Parliament for scrutiny and approval. A review of the UK Parliament’s Hansard, 1912 to 1914 revealed only one reference that had some minimal relevance. On 21 February 1912, in a debate on Northern and Southern Nigeria (Hansard UK Parliament Vol. 34), Mr Harcourt the Secretary of State for the Colonies informed the House as follows:

 ‘The uniting of the Governments of Northern and Southern Nigeria has been recognised for some years past as desirable in principle, and the present time is opportune for taking the first step towards the fulfilment of this object. His Majesty has approved of the appointment of Sir Frederick Lugard as Governor of Southern Nigeria as well as of Northern Nigeria, the administrations remaining for the present separate. It is hoped that this measure may enable Sir Frederick Lugard, when he has had experience of the conditions and requirements of both territories, to confer with me on a scheme for their amalgamation into a single administration.’

 

The requirement for reasonableness is a tradition of the British Common Law. UK Ministry of Justice in The Governance of Britain. Review of the Executive Royal Prerogative Powers: Final Report:

‘As well as controlling the existence and extent of prerogative powers, the courts are nowadays able to scrutinise the manner in which such powers are exercised. One route is through an action under the Human Rights Act, which provides a mechanism whereby an aggrieved person may challenge an act or omission of the executive in the UK courts. The other main route is through the mechanism of judicial review, which enables the actions of a Minister to be challenged on the basis that he or she did not have the power to act in such a way; that the action was unreasonable, or that the power was exercised in a procedurally unfair way.’

 

William Blackstone in his Commentaries.

‘…the prerogative of the Crown extends not to do any injury: it is created for the benefit of the people, and therefore cannot be exerted to their prejudice…’(1: 232, 239)

 

‘…For prerogative consisting (as Mr. Locke has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if the discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner.’(1: 234-44)

 

The Orders that Britain used to create Nigeria were not in any shape or form ‘reasonable’, and they manifestly were unjust. Firstly, the Orders were used to remove rights that had been guaranteed to the Yoruba people by the de facto governments of the Yorubaland. In Miller II or the Brexit Article 50 case, ([2019] UKSC 41) the British courts determined that the prerogative had no power to trigger notification under the Article 50 of the Treaty on European Union, on the grounds that it would remove a series of rights created by Acts of Parliament. Similarly here, the Orders had no power to trigger the 1914 Amalgamation of the Yorubaland into Nigeria, because to create Nigeria removed previously guaranteed rights.

 

Secondly, the Orders were used to contravene the ‘duty to act fairly’. The duty had its base in the principle of natural justice. Lord Diplock gave it the title of ‘procedural impropriety’ in the GCHQ case ([1985] AC 374). Britain did not at any time seek the consent of the Yoruba people whose interests Britain was using the prerogatives to expunge. The Orders creating Nigeria thus were derelict.

 

Thirdly, the Orders were misapplied to the non-British subjects of the Yorubaland. The Orders were applicable in law only to British subjects. At those material times, the Yorubaland was an independent sovereign State with a citizenry of its own, who were therefore non-British subjects. Britain defied the Foreign Jurisdiction Act 1890; Section 2 of which says:

 ‘Where a foreign country is not subject to any government from whom Her Majesty the Queen might obtain jurisdiction in the manner cited in this Act, Her Majesty shall by virtue of this Act have jurisdiction over Her Majesty’s subjects for the time being resident in or resorting to that country, and that jurisdiction shall be jurisdiction of Her Majesty in a foreign country within the meaning of this Act.’

 

It is frequently suggested to let ‘sleeping dogs lie’, because these events took place so long ago. First of all, there is no statute of limitation on the common law. Further, the injustice that Britain perpetrated on the Yorubaland is continuing. If the Orders in Council (1914 and 1922) were unlawful then, they are unlawful now. This means that the Yorubaland was legally entitled to be returned to the state that it was before the Orders were made.